92 Decision Citation: BVA 92-07399
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-23 573 ) DATE
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THE ISSUES
1. Entitlement to an increased rating for residuals of a
shell fragment wound to the right (major) arm, Muscle Group
V, currently evaluated as 30 percent disabling.
2. Entitlement to an increased rating for residuals of a
shrapnel wound to the left shoulder with traumatic
arthritis, currently evaluated as 30 percent disabling.
3. Entitlement to an increased rating for residuals of a
shrapnel wound to the left (minor) forearm, Muscle Group
VIII, currently evaluated as 10 percent disabling.
4. Entitlement to service connection for arthritis of the
right shoulder, elbows, wrists and hands.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Audrey Grosenick, Associate Counsel
INTRODUCTION
This case came before the Board of Veterans' Appeals
(hereinafter the Board) from adverse rating decisions from
the Waco, Texas, Regional Office (hereinafter RO). The
veteran served on active duty from January 1942 to July
1945. A rating decision of November 1989 denied the issues
on appeal. A notice of disagreement was received by the RO
in December 1989. A statement of the case was issued in
January 1990. In May 1990, the RO received a substantive
appeal. This case was received and docketed at the Board in
June 1990. In December 1990, the Board remanded the case to
the RO for an examination of the veteran. A rating decision
of June 1991 confirmed the earlier denial. A supplemental
statement of the case was issued in June 1991. The case was
returned to the Board and received in August 1991. The
veteran has been represented throughout his appeal by the
Disabled American Veterans. They submitted an informal
hearing presentation in November 1991.
In a statement dated June 1990, the veteran's representative
contended that the veteran is entitled to an increased
rating for cervical neuritis. This issue has not been
developed or certified for appellate review and is referred
to the RO for any action deemed appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend that he is
entitled to an increased rating for residuals of a gunshot
wound to the right arm, residuals of a shrapnel wound to the
left shoulder with traumatic arthritis, residuals of a
gunshot wound to the left forearm, and entitlement to
service-connected for arthritis of the right shoulder,
elbows, hands and wrists. The veteran's representative
further contends that various portions of 38 C.F.R. Parts 3
and 4 are applicable to this case.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claims.
FINDINGS OF FACT
1. All relevant evidence necessary for adequate development
of the veteran's appeal has been obtained by the RO.
2. Residuals of a shell fragment wound of the right arm is
manifested by pain, a retained metallic foreign body, no
joint or bone abnormality, a scar along the biceps brachii
and no functional impairment of the right elbow or forearm,
which is no more than moderately severe.
3. Residuals of a shrapnel wound of the left shoulder with
traumatic arthritis is manifested by pain, tenderness, a
retained foreign body and abduction to 120 degrees, which is
no more than severely disabling.
4. Residuals of a shrapnel wound of the left forearm is
manifested by pain, minimal crepitus in the wrist, multiple
retained foreign bodies in the left forearm and wrist, and
normal range of motion of the left elbow, forearm and wrist,
which is no more than moderately disabling.
5. Arthritis of the right shoulder, elbows, wrists and
hands was not present in service or within one year of
discharge from service and cannot be reasonably related to
or the result of service-connected injuries.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation greater than
30 percent for residuals of a shell fragment wound of the
right arm have not been met. 38 U.S.C. §§ 1155, 5107
(formerly §§ 355, 3007); 38 C.F.R. § 4.7, Part 4, Code
5305.
2. The schedular criteria for an evaluation greater than
30 percent for residuals of a shrapnel wound of the left
shoulder with traumatic arthritis have not been met.
38 U.S.C. §§ 1155, 5107 (formerly §§ 355, 3007); 38 C.F.R.
§ 4.7, Part 4, Codes 5200, 5303.
3. The schedular criteria for an evaluation greater than
10 percent for residuals of a shrapnel wound to the left
forearm have not been met. 38 U.S.C. §§ 1155, 5107
(formerly §§ 355, 3007); 38 C.F.R. § 4.7, Part 4, Code
5308.
4. Arthritis of the right shoulder, elbows, wrists, and
hands were not incurred in or aggravated by active military
service; may not be presumed to have been incurred in
service; and is not proximately due to or the result of the
service-connected disease or injury. 38 U.S.C. § 1101,
1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.307, 3.309, 3.310
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that the veteran's claims are "well-grounded" within
the meaning of 38 U.S.C. § 5107(a) (formerly 38 U.S.C.
§ 3007(a)). That is, we find that he has presented claims
which are plausible. We are also satisfied that all
relevant facts have been properly developed. The veteran
has been afforded comprehensive VA examinations but he has
refused to submit to recommended VA electromyogram and nerve
conduction velocity studies.
I. Entitlement to an Increased Rating for
Residuals of a Shell Fragment Wound
of the Right Arm, Currently Evaluated
as 30 Percent Disabling
Service connection is in effect for residuals of a "gunshot"
wound of the right arm affecting Muscle Group V. However,
after considering the service medical records it would be
more proper to characterize his injury as a residuals of
"shell fragment" wound. The veteran is right-handed and
this disability affects his major extremity. The RO has
assigned a 30 percent evaluation for this disability under
the provisions of Diagnostic Code 5305 of the VA's Schedule
for Rating Disabilities, 38 C.F.R. Part 4. A 30 percent
evaluation is warranted for moderately severe injury to
Muscle Group V (flexor muscles of the elbow) of the major
upper extremity. A 40 percent evaluation contemplates
severe injury to the muscle. 38 C.F.R. Part 4, Code 5305
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7
In August 1944, the veteran sustained a penetrating shell
fragment wound of the right arm. An X-ray revealed a
metallic foreign body in the soft tissue adjacent to the
lower one-third of the humeral shaft anteriorly. There was
no damage to the humerus. The wound was debrided and a
foreign body was removed. In September 1944 the scar was
excised and secondary closure of the wound was affected.
In October 1944, the examiner noted a well-healed and
nontender scar on the anterior aspect of the upper right
arm. Range of motion was normal, grip strength was
80 percent and there was no muscular atrophy. In November
1944, the examiner found that the wounds were well healed.
In January 1945 there were no residual disqualifying defects
and he was returned to duty. A shell fragment was still
embedded and partially adhered to the biceps tendon. The
service discharge examination of July 1945 noted a
2-inch-long scar 1 inch above the elbow.
At a VA hospitalization in 1946, the examiner reported
slight tenderness over the scar in the supracondylar region
of the right arm. In December 1947, the veteran was
afforded a VA compensation examination. The veteran
complained of his arms giving out. The examiner found a
healed, slightly tender, 2 1/2-inch scar on the right arm
above the cubital space. There was scarring of the biceps
brachii and no atrophy. The diagnoses included wound of the
right biceps brachii muscle. At a VA compensation
examination in October 1949, the veteran complained of pain
in the right arm wound. The examiner noted a 2 inch deeply
adherent scar fitting and curving with the lateral border of
the right lower biceps which moved with the action of the
bicep. Range of motion was within normal limits.
Subsequent VA examinations found no limitation of motion and
X-rays revealed small metallic foreign bodies in the soft
tissue, with no bone or joint abnormality.
VA outpatient records in 1989 reveal complaints of right arm
pain. X-rays of July 1989 revealed a radiopaque foreign
body in the anteromedial soft tissues of the distal aspect
of the right upper arm. In October 1989, the veteran was
afforded a VA compensation examination. He complained of
pain on raising his right arm. The examiner found normal
range of motion of the elbows, wrists and forearms. The
examiner reviewed the prior VA X-rays and interpreted them
as revealing small metallic foreign bodies in the soft
tissue of the right upper arm, about 2 inches above the
elbow, which in his opinion, did not contribute to any
difficulty with the shoulder, forearm, or hand. The
diagnoses included "gunshot" wound, right arm, Muscle
Group V.
At a VA compensation examination in 1991, range of motion of
the elbows was normal. There was no tenderness or
swelling. The impression was soft tissue pain. The
examiner indicated that clinical evaluation did not
demonstrate degenerative joint disease of the wrist, elbow,
and hand and there was possible neuropathic pain
contributing to his discomfort.
In May 1991, a private nerve conduction study revealed no
evidence of any peripheral neuropathy, or median and ulnar
nerve entrapment syndrome at the wrist and elbow. The motor
conduction velocities of the median and ulnar nerves in both
upper extremities and elbow segments of both ulnar nerves
were normal. The sensory conduction velocities of both
median and ulnar nerves were normal.
In order to be entitled to an increased rating, the evidence
must show a severe muscle injury. While X-rays reveal small
metallic foreign bodies in the soft tissue of the right
upper arm, there is no bone or joint abnormality. Although
the veteran complains of discomfort, there is normal range
of motion of the right elbow and forearm. The current
rating is based on a moderately severe muscle injury and
contemplates prolonged hospitalization at the time of injury
and at least moderate loss of muscle substance or for muscle
resistance. Based on the clinical findings and service
records, it appears that the current rating is adequate and
an increased rating is not warranted.
Consideration has been given to the potential application of
the various provisions of 38 C.F.R., Parts 3 and 4, whether
or not they were raised by the appellant, as required by
Schafrath v. Derwinski, U.S. Vet. App. No. 89-114, slip op.
at 6 (Nov. 26, 1991).
II. Entitlement to an Increased Rating
for Residuals of a Shrapnel Wound
of the Left Shoulder with Traumatic Arthritis
Service connection is in effect for residuals of a shell
fragment wound of the left shoulder with traumatic
arthritis. The veteran is right-handed and this disability
affects his minor extremity. The RO has assigned a
30 percent evaluation for this disability under the
provisions of Diagnostic Code 5303 of the VA's Schedule for
Rating Disabilities. 38 C.F.R. Part 4. A maximum
30 percent evaluation is provided for severe injury to the
muscle group involved. 38 C.F.R. Part 4, Code 5303 In
order to warrant an increased rating to 40 percent, the
veteran's disability must be rated under code 5200. Under
that code, a 40 percent evaluation is warranted if there is
unfavorable ankylosis of the shoulder. Ankylosis is
considered to be unfavorable when abduction is limited to
25 degrees from the side. 38 C.F.R. Part 4, Code 5200
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. (38 C.F.R. 4.7)
On March 28, 1943, the veteran sustained multiple
perforating wounds involving the left forearm, wrist and the
left shoulder. He was hospitalized and the wound was
dressed. An X-ray revealed no fracture. He was returned to
duty on May 24, 1943. A service discharge examination of
July 1945, revealed minute scars of the left shoulder.
At a VA compensation examination in 1947, the veteran
complained of pain between his shoulders following work. No
significant scar was noted in this area. At a VA
compensation examination in 1949, the veteran complained of
pain and arthritis in the left shoulder. The examiner noted
a rounded, nonadherent and asymptomatic 1-inch in diameter
scar in the mid deltoid and a 1-inch rounded, nonadherent
and asymptomatic scar in the mid left trapezius area. Range
of motion of the left upper extremity was normal. An X-ray
revealed multiple small metallic foreign bodies in the soft
tissues of the deltoid area and above the mid-posterior of
the clavicle. No definite bone or joint pathology was
seen. The diagnosis was muscle injury, Group III with scar
and questionable arthritis of the left shoulder. A private
physician's report of 1963 reported that the veteran
complained of considerable pain radiating down his left arm
which was aggravated after a heart attack. Subsequent VA
examinations noted the veteran's complaints of pain.
In 1985, the veteran received VA outpatient treatment for
increasing pain in his left shoulder. The examiners noted
limitation of motion of the left shoulder and tenderness
over the bicipital groove of the left shoulder. At a VA
compensation examination in 1985, the examiner found partial
ankylosis and X-rays revealed minimal degenerative changes.
In 1989, the veteran was afforded a VA compensation
examination. The examiner found no tenderness to palpation
about the shoulder joint. Forward and lateral elevation was
to 120 degrees and external and internal rotation was to 45
degrees. The diagnosis was residuals of a shell fragment
wound to the left shoulder with traumatic arthritis. At a
VA compensation examination in 1991, the veteran indicated
that he had to quit work as a barber secondary to neck,
shoulder and arm pain. He complained of daily pain, and
morning stiffness. Abduction was to 120 degrees with
guarding and internal and external rotation was normal.
There was diffuse tenderness in trigger-point locations.
X-rays revealed several small scattered very tiny metallic
foreign bodies in the region of the proximal humeral head on
the left, otherwise bones, joints and soft tissue were
normal. The impression was soft tissue pain, mild adhesive
capsulitis of both shoulders which may be secondary to neck
and shoulder degenerative disease.
In order to warrant an increased rating to 40 percent, it
must be shown that abduction of the left shoulder is limited
to 25 degrees. Since the examiners found that abduction of
the left shoulder was greater than 25 degrees, the current
evaluation adequately reflects the veteran's degree of
impairment. Therefore, an increased rating is not
warranted.
Consideration has been given to the potential application of
the various provisions of 38 C.F.R., Parts 3 and 4, whether
or not they were raised by the appellant, as required by
Schafrath v. Derwinski, U.S. Vet. App. No. 89-114, slip op.
at 6 (Nov. 26, 1991).
III. Entitlement to an Increased Rating for
Residuals of a Shrapnel Wound of the Left Forearm
Service connection is in effect for residuals of a gunshot
wound of the left forearm affecting Muscle Group VIII. The
veteran is right handed, therefore, this disability affects
his minor extremity. The RO has assigned a 10 percent
evaluation for this disability under the provisions of
Diagnostic Code 5308 of the VA's Schedule for Rating
Disabilities. 38 C.F.R. Part 4. A 10 percent evaluation is
warranted for moderate injury to Muscle Group VIII (muscles
arising mainly from the external condyle of the humerus) of
the minor upper extremity. A maximum 20 percent evaluation
contemplates either moderately severe or severe injury to
the muscle. 38 C.F.R. Part 4, Code 5308
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7
On March 28, 1943, the veteran sustained multiple
penetrating wounds of the left shoulder, left wrist and left
forearm. At the time of injury it was thought there might
have been a compound fracture of the forearm. An X-ray
revealed metal fragments embedded in the bone, posterolateral
aspect of the radius, small flecks posterior to wrist joint
and between the second metacarpal and lesser multangular
joint. There was metal dust scattered through soft tissue.
There were no fractures. The wounds were dressed. He was
returned to duty on May 24, 1943. A service discharge
examination of July 1945 indicated multiple minute
superficial scars of the left forearm.
At a VA hospitalization in 1946, the examiner noted scars in
the lower one-third of the left arm. There was slight
limitation of motion of the left wrist. At a VA examination
in 1947, the veteran stated that his arms gave out on him.
The examiner noted a healed 1 1/2-inch scar over the dorsum
of the left wrist on the radial side, a probable chip
fracture of the carpals and a 1/2-inch nonadherent,
nontender scar over the ulna of the left forearm. An X-ray
of the left wrist revealed considerable fine metal debris
embedded in the posterior portion of the lower end of the
radius and irregularity of the posterior cortex in this
region.
At a VA compensation examination in 1949, the veteran
complained of pain in the areas of the wounds. The examiner
found a 2-inch nonadherent scar of the mid forearm, running
parallel to the palmaris longus and flexor carpi radialis
muscles. The examiner indicated that these muscles as well
as second and third layer muscles were evidently penetrated
because several small metallic foreign bodies could be
palpated on the opposite side. Flexion of the fingers and
wrist and forearm pronation were normal. A VA X-ray of 1987
revealed multiple small foreign bodies in the soft tissues
of the left forearm and wrists. The bony structures were
normal. Subsequent VA examinations noted the veteran's
complaints of pain but found normal range of motion of the
left forearm and wrist. VA outpatient records from 1988
reflect decreased sensation in the ulnar distribution
(subjective). The impression was mid forearm ulnar
neuropathy.
In October 1989, the veteran was afforded a VA compensation
examination. The examiner noted no tenderness on palpation
of the forearm. There was normal range of motion of the
wrist, forearm and elbow. There was no tenderness on
palpation of the left forearm and some tenderness on
palpation of the interphalangeal joints of the hand. The
examiner reviewed old X-rays from previous examinations. It
was the examiner's opinion that arthritis in the left
"forearm" was related to gunshot wounds and arthritis in the
hands was not related to gunshot wounds. The diagnoses
included gunshot wound to left forearm, Muscle Group VIII.
In 1991, the veteran was afforded a VA compensation
examination. X-rays of the left wrist revealed many very
tiny metallic densities in the region of the distal head of
the radius and adjacent soft tissue. The bones and joints
of the left wrist and hand appeared normal. The veteran
indicated that he had worked as a barber until one year ago
and had to quit secondary to pain in various areas including
his arm. He stated that he had nightly pain and in the
morning was stiff. The physical examination of the left
forearm, revealed full range of motion of the elbows and
wrists. There was no tenderness or swelling in the elbows
and there was minimal crepitus in the first carpometacarpal
joint of the wrist. There was slight decrease in sensation
to pinprick in fingers 1 through 4. Reflexes were within
normal limits. The impression was soft tissue pain. The
examiner indicated that degenerative disease of the wrist,
elbow and hand were not involved.
In May 1991, the veteran was afforded a private nerve
conduction study of both upper extremities. The examiner
reported no evidence of any peripheral neuropathy or median
and ulnar nerve entrapment syndrome at the wrist and elbow.
In order to warrant an increased rating to 20 percent, the
muscle injury must be moderately severe. The evidence
reflects that the veteran has multiple retained foreign in
the left forearm with damage to muscle group VIII which is
not more than moderate. We have considered the veteran's
complaints of pain; however, recent VA examinations found
full range of motion of the left forearm with only minimal
crepitus of the left wrist. While a VA examiner diagnosed
arthritis of the left forearm, X-rays revealed no
degenerative changes of the joints of the left forearm. At
the time of the injury the wounds were dressed and there is
no indication of debridement. The hospitalization and
convalescence were about two months long. It appears that
there was no fracture upon radiologic examination. Based on
these findings, the current rating adequately compensates
the veteran for the symptoms arising from this wound.
Consideration has been given to the potential application of
the various provisions of 38 C.F.R., Parts 3 and 4, whether
or not they were raised by the appellant, as required by
Schafrath v. Derwinski, U.S. Vet. App. No. 89-114, slip op.
at 6 (Nov. 26, 1991).
IV. Entitlement to Service Connection for
Arthritis of the Right Shoulder,
Elbows, Wrists and Hands
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C. § 1110 (formerly 38 U.S.C. § 310) Where
a veteran served 90 days or more during a period of war and
arthritis becomes manifest to a degree of 10 percent within
1 year from date of termination of such service, such
disease shall be presumed to have been incurred in service,
even though there is no evidence of such disease during the
period of service. This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C. §§ 1101,
1112, 1113 (formerly 38 U.S.C. §§ 301, 312, 313); 38 C.F.R.
§ 3.307, 3.309)
The service medical records do not contain any reports of
arthritis of the right shoulder, elbows, wrists and hands in
service and a service discharge examination of July 1945 did
not find arthritis of these joints. Reports of examinations
conducted shortly after discharge from service reported no
arthritic changes. Since there were no arthritic changes
present during service or within one year of discharge from
service, service connection for arthritis of the right
shoulder, elbows, wrists and hands cannot be granted on a
direct or presumptive basis.
Service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) The veteran is
service connected for residuals of shrapnel wounds of the
neck, right arm, left shoulder, left forearm, left scapular
area, left wrist, left deltoid, left inguinal region, jaw,
and the supraclavicular area.
Regarding the veteran's claim for entitlement to service
connection for arthritis of the right upper extremity, there
is no X-ray evidence of arthritic changes of the right
shoulder, right elbow, right wrist or right hand. However,
in 1989 a VA examiner diagnosed nontraumatic arthritis in
the right shoulder, right hand and right forearm (not
listed) which, in his opinion, was not related to his
in-service wounds.
These diagnoses are questionable in view of the fact that
they are not supported by X-ray findings. VA X-rays of
1991, revealed no arthritic changes of the right shoulder,
right wrist or right hand and the examiner commented that
degenerative disease of the wrists, elbows and hands was not
involved. In view of the fact that the subsequent medical
opinion ruled out the presence of arthritis and arthritis
was found to be unrelated to any in-service injury according
to the earlier opinion, entitlement to service for arthritis
of the right shoulder, right elbow, right wrist and right
hand is denied.
Regarding entitlement to service connection for arthritis of
the left elbow, left wrist and left hand, we note that there
is no X-ray evidence of arthritis in these joints. While a
VA examiner found that arthritis of the left forearm was
related to in-service gunshot wounds and opined that
arthritis of the left hand was nontraumatic, we note that VA
X-rays in 1991 of the left wrist, and left hand found no
bone or joint abnormality and the examiner commented that
degenerative disease of the wrists, elbows and hands was not
involved. In view of the fact that the most recent medical
opinion does not confirm the presence of arthritic changes
in the left elbow, left wrist or left hand, entitlement to
service connection for arthritis of the left wrist, elbow
and hand cannot reasonably be related to any in-service
injury. Therefore, service connection is not warranted.
ORDER
Entitlement to an increased rating for residuals of shell
fragment wound of the right arm is denied.
Entitlement to an increased rating for residuals of shrapnel
wound of the left shoulder with traumatic arthritis is
denied.
Entitlement to an increased rating for residuals of a
shrapnel wound of the left forearm is denied.
Entitlement to service connection for arthritis of the right
shoulder, elbows, wrists and hands is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JAN DONSBACH W. H. YEAGER, JR., M.D.
JOAQUIN AGUAYO-PERELES
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.